England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 20th May 2009

1. LORD JUSTICE HUGHES: This appeal comes here as a reference, originally at least, by the Criminal Cases Review Commission, in relation to the defendant's conviction for murder. The grounds, however, which are now advanced are distinct from those which were referred. We have heard full argument about all of them and propose to deal with all of them.
2. On 27th August 2002 the deceased, Mr Ellis, had visited Manchester and parked his car in his brother's lockup garage. When he came to return to collect it, he unlocked the garage and reversed out. He got out of his car to shut the garage door. He left the engine running, the headlights on and the driver's door open. In the moments that he was away from the driver's seat the defendant passed by. He saw the car and he took the advantageous opportunity to help himself to it. He went to it, got in and went to drive off. The deceased was run over by the car. The front offside wheel passed over his chest, spinning at the time. He became trapped underneath the car and thereafter, as things turned out, the damage was compounded by the defendant reversing or attempting to reverse, but that may have been simply to try to escape. The defendant did not extricate the car from the body of the deceased underneath. It was wedged. So, instead of driving off, he opened the driver's door and ran away, leaving the deceased where he was. To his credit, a few days later the defendant surrendered himself to police. He was interviewed on three occasions in the course of that day, in the presence of his solicitor. He gave, at the outset, his account of the incident and in its material terms it was quite short and we should cite it:

"...Went through the back of the estate. Car was running. The lights was on. No one was about. A garage door was open. Didn't look in it. I've jumped in the car, put it in first, the hand brake was already off. As I've been driving it out like turning, coz it was like, when the car door was open I didn't open the door, the car door was already open, jumped in the car. As I've been driving off just, a man appeared from nowhere just in front. I went over him, went over the man. Tried reversing it off him, but the car was stuck, it wouldn't move, so I put it in first gear, went to see if I could drive it off him so the car wasn't actually on him and it stalled in first gear. I jumped out the car. Just didn't hear the man saying nothing. Heard sirens and just in shock and ran off."

There followed other questions, both in elucidation of that and to put to the defendant the material which the interviewing officers had, but with few exceptions the defendant thereafter accepted the advice of his solicitor that he had said what had happened and had nothing to add. Accordingly, the remaining questions by and large were answered without comment. The only exception was in the course of the third interview, when the defendant, at the invitation of his solicitor, offered a further short account of himself, saying in answer to the question: "How do you feel about it now?" "I just want me to be punished for it and obviously try and put the family's mind at rest."

3. All this had occurred in the confines of a small enclosed yard with approximately six lockup garages in a row and about four or five parking spaces outside. The entrance/exit was at right angles to the fronts of the garages. The plan and the photographs before the jury demonstrated how cramped the space was. From the position outside the garage to the exit was not more than about a car's length and a half. The evidence at the trial, and the account offered by the defendant, to his solicitors and in the interview, suggested that the car had moved not more than a couple of metres or so from the time the defendant got into it, to the time that he got out of it.
4. At the trial the defendant pleaded guilty to the offence of manslaughter, but contested the allegation of murder. There was some evidence from passersby, who had heard the noise of a revving car and/or squealing tyres, but no one who gave evidence had observed the event in such a way as to see the deceased or how he came to be underneath the car. It was the Crown case that the defendant had driven at the standing deceased and either knocked him down deliberately or at least had deliberately driven over him. There was a good deal of evidence in the trial about whether the objective facts demonstrated that the deceased had been knocked down by the car. The result was this. Although the pathologist thought that the injuries were consistent with that having happened, two accident investigators, one called for the Crown and one for the defendant, plus the forensic scientist called for the Crown did not support that construction of events. Their evidence was that if the car had struck the deceased when standing and at the very low speed which was all that possibly could have been achieved within the space available, it was very much more likely that the deceased would fall forward on the car rather than backwards down to the ground. It follows that a good deal of progress was made in the defendant's interests with that expert evidence.
5. The Crown case remained, however, that whatever the defendant had said in interview, he simply must have seen the deceased there, must have attempted to drive off despite his presence in the area of the front of the vehicle and must have driven deliberately over him because he could have stopped if he wanted to.
6. The defendant did not give evidence. There is no doubt that the question of whether he would give evidence or not had been considered over a period of weeks, if not months, before the trial. There is no doubt that at a relatively early stage, his solicitors and shortly afterwards his junior counsel, had formed the view that he would be an unsatisfactory witness in his own defence and that his best interests lay in not giving evidence. There is also no doubt that in due course leading counsel formed the same view. We proceed on the basis, which we are quite sure is right, that that was the advice which was tendered to the defendant. It is apparent that it is also something which had been discussed by the solicitor with the defendant's mother some time two or three weeks before the trial began. It is also apparent from the material which is now available and from what trial counsel had have accurately said, that the defendant was advised to tender the plea of guilty to manslaughter that he did.
7. Forensically the case has had a slightly complex history. After conviction, trial counsel advised that there appeared to be no grounds for appeal. The defendant must have instructed fresh advisors because an appeal was mounted to this court upon a ground which was limited to a third count in the indictment of aggravated taking of a motor vehicle and its relationship to the principal offence. That ground was duly considered by this court some considerable time ago and rejected, and it forms no part of any argument here. At the same time that the case was before this court then, the defendant himself sent brief written contentions to the effect that he had wrongly been persuaded not to give evidence. That assertion was unsupported by any evidence and indeed the defendant elected not to come to this court and there was no substance in it. It was dismissed and it is an argument which is not now revived.
8. Subsequently, a number of applications were made by the defendant to the Criminal Cases Review Commission. The first two did not succeed but the third, supported by new counsel, Mr Emanuel, did. Mr Emanuel's application to the Criminal Cases Review Commission relied upon the contention that the judge had insufficiently summed-up the defence. The Criminal Cases Review Commission referred the case on that ground and added a distinct ground of its own, namely that the judge had failed to direct the jury that the defendant's decision not to give evidence at the trial had been upon legal advice. Subsequently, to that latter assertion the Criminal Cases Review Commission added the proposition that trial counsel were at fault in failing to tell the judge that it had been on legal advice that the defendant had not given evidence.
9. Armed with the Criminal Cases Review Commission Reference, which stands as leave to appeal, the defendant now has the benefit not only of Mr Emanuel, for whose careful submissions in writing we are extremely grateful, but also of Mr Blaxland QC. Mr Blaxland rightly concludes that the second and third Criminal Cases Review Commission grounds, relating to legal advice not to give evidence are unarguable. We will return to them but he is plainly right.
10. He, however, advances the first of the Criminal Cases Review Commission grounds, namely failure to sum-up the defence and adds to it four further grounds, which have not previously occurred to anybody else, but are, of course, none the worse for that if they are correct. It follows that what we now deal with are the following grounds:

(i) failure to sum-up the defence.

(ii) misdirection as to adverse inference from the decision not to give evidence (section 35)

(iii) absence of any direction as to adverse inference from "no comment" in interviews (section 34)

(iv) failure to call or alternatively to consider calling psychiatric evidence of post traumatic stress syndrome as an explanation for the decision not to give evidence.

(v) wrong advice to plead guilty to manslaughter.

Those are Mr Blaxland's five grounds. Both the defendant and the Criminal Cases Review Commission invite us to consider the additional Criminal Cases Review Commission grounds, namely no direction by the judge that not giving evidence was on legal advice and failure on the part of the trial advocate to tell the judge that that was the case. Lastly, the defendant, in a letter written to the court, raises in addition to those various grounds, his own contention that he was wrongly advised not to give evidence.

11. We will do our best to take those various grounds seriatim.
12. Ground 1
13. The complaint is that the judge at no point recited the terms of the relevant bit of the police interviews which we have already cited in this judgment. He told the jury at an early stage in the summing-up that whilst they had not heard any account from the defendant from the witness-box, they did have the account that he gave in interview. Both counsel had referred to it. He reminded them that they had transcripts and summaries, as the case may be, of the various interviews and he added this:

"You will no doubt take into account what he said in interview. It is important".

That was in the context of dealing with the state of the evidence from the defendant and accordingly it was, as one would expect, balanced by the qualification that what had been said in interview had not been given on oath or tested in cross-examination. In due course, in the course of careful summary of the evidence, the judge referred to the interviews. He told the jury that he had been going at this point to read out the interview but had decided that it was unnecessary because, first, they had it read to them by both counsel. That must be a reference to counsel's speeches. Secondly, they had the material in front of them and no doubt had it clearly in mind. The position is, as we understand it, that the first critical interview with the passage which we have cited had actually been played on tape to the jury, and that had been at the election of the counsel for defence. The reason for doing that, and it is an entirely proper, if not wise, precaution is to enable the account to live in the minds of the jury. The tape had been played but the jury also had a transcript, which they could follow when it was played and which they were taking with them into retirement. In addition to that, as we have indicated and the judge reminded them, they had heard the relevant passage read by both counsel.

14. Says Mr Blaxland, that is no substitute for identifying the issue to the jury and reminding it of the terms in which the defendant had expressed himself and, most of all, said Mr Blaxland it is no substitute for identifying what the defence is.
15. In general terms, those are, of course, unexceptional propositions. There is a large number of decisions to that effect, to some of which we have been referred: R v Berry [1997] 10 Archbold News 2; R v Amado Taylor [2000] 2 Cr App R(S) 189 and R v Akhtar [2000] 1 Archbold News 2, to name but three.
16. The critical obligation of the judge, however, is to identify the issue and to identify the defence. Those two things go together. The way in which that was achieved in this case was this. The judge posed for the jury this question: "So what are the issues left for you to decide?" He went on to analyse them in terms which we need not cite verbatim. They amounted to whether it had been proved that the defendant deliberately drove the car at Mr Ellis with the intent to kill him or to at least cause him really serious harm. He went on to say that those questions were, as they plainly were, inextricably interlinked and then he said this:

"If Mr Branchflower was simply intent on driving the car out of the forecourt and that he was unable to avoid running over Mr Ellis when he fell in front of the car, if that is what happened, then this was a tragic accident. Mr Branchflower's criminal conduct would be adequately reflected by his pleas of guilty to manslaughter and aggravated vehicle taking and your verdict would be not guilty of murder."

Thereafter the judge went on to a detailed summary, particularly of the expert evidence which, as we have said, was evidence in relation to which a good deal of helpful progress had been made on behalf of the defendant.

17. It seems to us that whilst, of course, it would be clearer to any subsequent reader of the summing-up what the defence was, if the contents of the defendant's interview had been read into it, what matters in a summing-up is whether it sufficiently identifies the issue for the jury which has attended the trial. Summings up are not written for people like us who come afterwards. The passage which we have just cited did identify the issue and it also identified precisely what the defence was. If the judge had added at the end of the passage which we have just cited words to the effect of: "That is what the defendant said in interview and that is his defence", it is very difficult to see that there would have been any criticism.
18. The cases all depend, as Mr Blaxland realistically concedes, on their own facts. Amado Taylor was a case in which, for reasons which are unclear but surprising, the judge had elected to say nothing at all about any of the evidence on either side. Akhtar was a case in which in the context of allegations of a VAT fraud, there were lengthy interviews with the defendant which took a day to summarise. They were plainly detailed and they needed a summary in a case in which the defendant had not given evidence. But both of those cases are a very long way from the present case. Berry was a case of theft from employers. The summary of the evidence left out the defendant's account and also character evidence which had been called on his behalf.
19. We are satisfied that in present case, although no doubt it would have been better if the judge had read the words of the interview into his summing-up, he would merely have been reading for the third time in a very short period words with which the jury were entirely familiar.
20. Ground 3: the section 35 direction.
21. The judge rightly put this direction in the context of his direction as to the burden of proof. He moved from the burden of proof to the fact that a defendant is under no obligation whatever to give evidence. He reminded the jury that the decision not to give evidence was the exercise of the defendant's right to remain silent and to put the prosecution to proof. He told them explicitly that it must not be assumed that the defendant was guilty simply because he had chosen not to give evidence. He went on to say that the decision not to give evidence may have certain consequences. The first was that the account that the defendant had given had not been tested in the witness-box and then he came to the section 35 direction. He reminded the jury of the open court question, which section 35 requires to be asked of defence counsel and which the jury would have seen put to leading counsel in this case. He went on to say this:

"The question illustrates the position. You are entitled to draw reasonable inferences from his decision not to give evidence. It is open to you to take the view that the reason that he has not given evidence is because he has no answer to the prosecution case, or putting the same thing in a different way, because such answers as he might give would not stand up to the sort of close scrutiny they would have been subjected to by Mr Edis in cross-examination."

He went on to direct the jury that in addition it must be satisfied that there was a case to answer before any question of drawing such an inference could arise and moreover that there was a second hurdle, namely was it a proper and fair inference to draw. He added defendant's explanation as offered by counsel in the course of his close speech:

"Mr Shorrock effectively says this is a young man who has given a full explanation in interview and he submits that you can be sure in interview that he told the truth and there was nothing more he could add. His account is certainly consistent with the expert evidence if not actually supported by it."

We entirely endorse the submission made to us that the critical part of a section 35 direction is that the adverse inference can be drawn against a defendant, only where the jury is satisfied that the reason for the defendant's absence from the witness-box is that he has no answer or none that will stand up to examination.

22. Mr Blaxland's submission is that in the passage which we have quoted the judge has, instead of saying that, converted the direction into a permissible prosecution comment. In effect, as we understand it, that is substantially because the judge did not in terms insert the word "only" into his direction. Says Mr Blaxland, he did not sufficiently make clear that it was only when the jury were sure that the defendant had no answer or none that would stand up to examination that the silence of the defendant could be taken against him.
23. We have read and reread the passage in question but with great respect, we are unable to see the judge has done any such thing. As Mr Blaxland suggests, he has explicitly told the jury the one circumstance in which they may hold the defendant's silence as adding to the case against him. It is when it is sure there is no answer or none that will stand up to examination. Moreover, as will appear from what we must say later on, it is apparent in this case that it was in fact the reason why the defendant did not give evidence, that he had no explanation which was going to stand up to scrutiny. The ground based on the section 34 direction must accordingly fail.
24. Ground 2: no comment in interview.
25. The record of the interviews as placed before the jury, part transcript and part summary, disclosed the fact that to a number of questions, quite a lot, the defendant on legal advice gave no answer. The reason for the legal advice was in evidence. It was cogently put by the solicitor in the course of the interview, namely that he had given his account and he had nothing to add. The question of possible conclusion adverse to the defendant from those non answers appears not to have been addressed at any stage, including when there was the kind of pre summing-up discussion of directions that is good practice and was followed in this case. There ought to have been a section 34 direction in this case. It was the fact that there were no comment answers. It would not have overcomplicated the summing-up because in a case in which the defendant has not in fact given evidence and nor relied in his defence upon any material omitted at the time of interview, all that needed to be said was he was entitled to give no answer and you must not hold it against him and then to move on to the fact that it is different when it comes to silence at trial.
26. It is however the fact that no one had remotely suggested that the defendant was in any way at fault in not answering all of the questions in interview and it is also plainly the fact that in a case in which the defendant does not give evidence, as Mr Blaxland realistically accepts, the impact of silence at trial will dwarf, at least on the facts of a case like this, any decision not to answer questions in interview, certainly where that decision is ostensibly on the initiative of the solicitor attending the interview.
27. Mr Blaxland rightly says that this ground, on its own, would not be enough to shake the safety of the conviction. With that we agree. We are satisfied that the absence of the direction which ought to have been given does not, in this case, affect the safety of this conviction.
28. Psychiatrist's evidence.
29. The solicitors for the defendant had instructed a psychiatrist. That appears to have been because they were aware from the defendant's mother of signs of strain in the defendant and they no doubt wanted to be assured that there was no medical point which needed to be taken in his interests. The report became available shortly before the trial but some notice of its likely contents had been given by the psychiatrist on the telephone, about 2 or 3 weeks beforehand. At that stage, the psychiatrist had indicated that the defendant appeared to fulfil the conditions for diagnosis of post traumatic stress disorder, arising from the experience of being responsible for the death of the deceased.
30. The contention now advanced on behalf of the defendant is that the conviction is unsafe because trial counsel wrongly failed to call, or at least to consider calling, the evidence of the psychiatrist in order to explain the absence of the defendant from the witness-box. We have read the report of the psychiatrist. We reject the submission of the Crown that, had he been called he would inevitably, because he had relied on a history given by the defendant, have been open to cross-examination on the defendant's not insubstantial criminal history. We do not think that follows at all. But, there is no doubt that to call him would have been enormously unwise for any defence advocate. The defendant had told the psychiatrist that he was having frequent flashbacks of seeing the deceased, a man with glasses. That would have opened up examination of what kind of view he had had of the deceased, who did wear glasses but whose glasses were not to be seen in any of the photographs available to the defendant. In addition, the psychiatrist had warned the solicitors that he did not believe everything that he had been told by the defendant. That would have been likely to have led to exploration. Thirdly, the psychiatrist's conclusion was not that the defendant could not give evidence, it was that he could give evidence but would need somebody friendly standing by in case he became distressed. Distress in a defendant in giving evidence about an incident of this kind, which he has already told the police is one for which he wants to be punished, is no kind of reason and could be no kind of reason for not calling him. Fourthly, the psychiatrist's report disclosed that it appeared that the defendant had been showing photographs of the deceased to a colleague in prison. That would have had to be explored. Whatever the result would have been, we do not know. It may or may not be true. But it is another reason why it would have been exceedingly unwise to proffer the psychiatrist.
31. Above all the reason why it was not only reasonable not to call the psychiatrist, but it would have been wrong to do so, is that the explanation for the defendant's absence from the witness-box was not medical. The reason why the defendant was absent from the witness-box was because he had been advised by counsel, who had seen him over a period, that his evidence would not stand up. He was not going to be a good witness. It was partly because he had a short fuse. It was partly because he had made a number of comments in conference, which disturbed the solicitors and counsel and, most of all, no doubt, it was because any competent advocate defending this man could not have failed to realise that the moment the defendant stepped into the witness-box and gave evidence in accordance with the proof which he had given, relatively few questions in cross-examination would have damaged him beyond repair. He would have had to explain, for example, why it was that he said that there was nobody around when in fact the deceased was there, for nobody stealing a car would fail to look to see whether there was anybody there. He would have had to explain how it was that although he said he had immediately slammed on the brakes on seeing the deceased, he had nevertheless managed to drive over him to the point that the deceased became wedged underneath. That might be unavoidable if one is travelling at 10 or 15 per hour in a busy street and someone runs out in front of the car, but when you have only moved a couple of metres and are scarcely rolling, it might be thought to raise really difficult questions for the defendant advancing it. He would have had to explain how he had failed to see the deceased, who the objective evidence plainly demonstrated must have been within a yard or two of the front of the car, with a padlock in his hand, standing by the garage door.
32. It is for those reasons that there is nothing in the contention that the psychiatrist ought to have been called and it is for those reasons that we earlier said that it was in fact, in this case, because the defendant had no explanation which would stand up to examination that he had decided not to give evidence. We should add in relation to the last ground this: we do not ignore Mr Blaxland's contention that the adverse criticism of the defendant's account was, as he would say, as trenchant in the absence of the defendant from the witness-box as it would have been if he had been called. We agree, of course, that many of the same points could be and we daresay were made by way of argument from counsel. But to contend that there is no difference between the jury watching the defendant struggle with the questions, on the one hand, and hearing submissions from counsel on the other, is to ignore the reality of trial dynamics.
33. The plea of guilty to manslaughter.
34. The defendant was advised that he should plead guilty to the offence of manslaughter on the basis that taking the car was an unlawful act and that it was one which in the circumstances any reasonable person must have realised carried the possibility of causing some harm to some one, because there had to be someone around with the car door open and the engine still running. Said Mr Blaxland, the advice was couched in terms that the defendant had no defence to manslaughter. Strictly speaking, says Mr Blaxland, that is not right. The question of whether the act of taking the car in the circumstance of this case carried the risk of some harm to someone was a question for the jury which the defendant could have put in issue. We agree that as a matter of legal technicality that is right. If one were writing a lecture for law students, then to say that there was no defence which could be advanced would no doubt be correct. But counsel who are giving advice to non lawyers, whose future is at stake and who are under a good deal of stress are not required to express themselves in terms of legal technicality. There is a note of what leading counsel said in the course of the conference. It is no doubt a distillation of what was a much longer conversation. But it demonstrates that leading counsel explained that manslaughter was the unlawful killing of somebody, not in self defence or by accident. It required that the act had caused the person's death. There is no doubt about that. It involved a reference to gross negligence, which undoubtedly was likely to arise in this case and it went on to explain the gist of unlawful act manslaughter in terms which were carefully tailored to his audience:

"Counsel advised him that in his case he's guilty of aggravated vehicle taking. That is an act which any reasonable person in the circumstances must have realised carried the possibility of causing harm to someone, in particular with the car door being opened and the engine running clearly someone was in the vicinity. He therefore felt that Mr Branchflower had no defence to manslaughter."

We have to say that we regard that as a model form of advice to a man in Mr Branchflower's situation and Mr Branchflower ought not to allow himself to believe that he has in any way been misadvised. The expression "had no defence" is, of course, shorthand for: "You are virtually certain to be convicted". But he was correct.

35. Quite apart from that, the question of the advice as to the plea of guilty to manslaughter bears on the present appeal if, but only if, the advice given, even if it were wrong, had any impact at all on the verdict of the jury. This jury was told that it could convict of murder only if it was satisfied that the defendant drove deliberately at the deceased, knowing that he was there. It must have been satisfied of that. It is impossible to see how the defendant's admission of the lesser offence of manslaughter, which included none of that element, can possibly have had any impact on the jury. On the contrary, the plea of guilty to manslaughter was, as it seems to us, a plea which very large numbers of experienced advocates would properly advise. Not everyone, but a large number. In the context of a man who had told the police that he wanted to be punished, it enabled counsel to say that the defendant was facing up to his responsibilities, but that murder was simply not what he had done. That was the argument. The plea of guilty enabled it to be put with greater force. That in the end it did not succeed does not mean that it was the wrong way to conduct the case.
36. We turn to the original additional grounds raised by the Commission. It is perfectly true that the judge gave no direction to the jury that the defendant's decision not to give evidence, if based on legal advice, needed special consideration. That ground, however, we have to say is wholly misconceived. There was no evidence before the jury as to why the defendant had not given evidence. Absent some medical, or perhaps pressing social cause, it is very difficult to see how there ever could be evidence of why a defendant chooses not to give evidence, but we do not attempt to foresee every case of its kind.
37. The present case was a case in which the defendant was absent from the witness-box, for the reasons we have already explained.
38. Similarly misconceived is the suggestion that counsel ought to have informed the judge of the reason for the defendant's absence from the witness-box. To have done so would have been a positive dereliction of counsel's duty to their client because, if they had advised the judge that they had tendered the advice of the defendant not to give evidence because he was not going to be a satisfactory witness, that could only have damaged the defendant. Nor could counsel have addressed the jury on the basis that they had given advice without disclosing the reasons for it. That is specifically prohibited by the decision of R v Cowan [1996] 1 Cr App R 1. For the avoidance of doubt, if any advocate were ever to attempt to advance an account of such advice, he would be wrong to do so without the defendant's consent. If he had the defendant's consent, it would amount to a waiver of privilege and that would lead inevitably to an enquiry into precisely why the advice had been given.
39. For the same reasons and for the reasons which we have already attempted to give, the defendant's own contention that he was wrongly advised not to give evidence is hopeless. Of course one can only sympathise with a man who, having made the decision not to give evidence and has found that the outcome has gone wrong, will regret what has happened and find it appealing to cast the blame elsewhere. But whether or not to give evidence is a decision of considerable delicacy in many, if not, most cases. Nearly always there are advantages in not doing so and advantages in doing so, similarly disadvantages on both sides. On the facts of this case the advice that counsel gave was proper, reasonable and would have been given by a large number of advocates in the same position. It is not open to criticism. Mr Blaxland is quite right to recognise that. We understand that it is difficult for the defendant to accept it, but it is nevertheless the fact.
40. In those circumstances, for all those reasons, this appeal must be dismissed. We are, we should like to say, very grateful to the Commission and to counsel on both sides for the thoroughness with which the matter has been investigated and the cogency with which it has been argued.